Jury finds couple who voted twice not guilty of election fraud

Intentions considered in rendering verdict

A Milwaukee couple wept and hugged their lawyers Wednesday after a jury found them not guilty of election fraud for voting twice in the 2008 presidential election.

But they had little to say after escaping a possible prison sentence.

"I'm drained right now," said Herbert Gunka, 61.

"I'm speechless," said Suzanne Gunka, 56, as they quickly left the Milwaukee County Safety Building.

The Gunkas admitted casting both absentee and election-day ballots, but insisted the latter was only because they honestly believed the former had not been counted, due in part to talk radio discussions that raised their fear of fraud and stolen votes. They said they never meant to have each vote count.

They were among 20 people charged by the Election Fraud Task Force, including several cases of felons voting, or improper registration of voters, but the only case of double voting. The Gunkas were charged in March 2010.

"We believe the evidence presented reflected a violation of the state election laws, but we respect the jury's verdict," said Bill Cosh, spokesman for Attorney General J.B. Van Hollen.

One juror said the panel felt the state didn't prove the Gunkas each meant for both of their votes to count, and didn't think the fact they initially lied to agents who came asking questions a year later betrayed anything more than the panic Herbert Gunka said gripped him when he realized what was happening.

Assistant Attorney General David Maas had stressed the couple's personal responsibility to ask about their prior vote before casting a second, but the juror said that cut both ways.

"You have a personal responsibility when you have a job as a poll worker," said Nicole Matenaer of West Allis.

Election officials testified that a poll worker should have noted the word "absentee" printed in gray left of the Gunkas' names in the poll book Nov. 2, 2008, and asked them if they had sent in their absentee ballots. If they had answered yes, the worker was not supposed to give them ballots.

Matenaer also wondered why Maas did not put the poll workers on as witnesses, a question raised by the defense.

She said jurors were also disturbed by the fact the state Department of Justice agents who showed up at the Gunkas' house in September 2009 intentionally misled him about the purpose of their visit, and secretly recorded Herbert Gunka, yet expected him and his wife to be completely forthcoming with them.

"It's all about honesty," Matenaer said.

The jury had heard the agents' recording of their doorway interview with Herbert Gunka, and they asked to hear it a second time during four hours of deliberations.

Ambush or opportunity?

In his closing argument, Maas stressed how the agents gave both Herbert and Suzanne, interviewed a short time later at her workplace, multiple chances to admit they had voted absentee, and gone together to their polling place a week later.

But the couple's attorneys said they were just scared by the ambush-style interviews.

Herbert Gunka's attorney, Patrick C. Brennan, reminded the jury that his client had voted 32 times since 1992, and never twice in the same election.

"He's not a criminal," Brennan said. "He's a responsible citizen.

"All the man wanted was for his one vote to count."

Patrick Cafferty, representing Suzanne Gunka, argued that the government "goes too far" when it charges people who make honest errors.

Jurors in the two-day trial got a crash course in Milwaukee voting procedures.

Before 2008, absentee ballots were counted at each polling place, and a red A was marked after a voter's name on the poll book. But starting that year, all absentee votes were counted at a central location. If a voter requested an absentee ballot, it is indicated in gray on the left margin of the poll book.

Herbert Gunka testified that, succumbing to similar concerns in 2004, he went to his polling place, saw the red A next to his name, and was reassured his vote was counted. He said he hadn't read letters sent with absentee ballots in 2008 explaining the change and, when he checked on election day and didn't see the A, concluded his first ballot had been lost or stolen.

After the verdict, Circuit Judge Richard Sankovitz told the Gunkas it must have been odd for them, as frequent voters, to see how many people in the jury pool admitted they never vote.

He also advised them to change their listening habits. "Talk radio hosts are the purveyors of misinformation," the judge said.